Some members of the Supreme Court appeared skeptical of arguments presented Wednesday by a Justice Department official aiming to persuade the nine justices to reinstate the death penalty against Dzhokhar Tsarnaev, the man convicted of carrying out the Boston Marathon bombing more than eight years ago.
Two questions stand before the high court: one relating to whether the jurors in Tsarnaev’s trial were properly vetted, and the other relating to evidence about his older brother that might have affected how harsh his sentence was.
The case also constitutes a challenge to President Joe Biden’s late-2020 claim that he opposes the death penalty and would work to end it while in office.
Under Biden, the Justice Department placed a moratorium on all executions, putting Deputy Solicitor General Eric Feigin in the position of arguing that Tsarnaev should get a death sentence that the Biden administration appears to have no intention of carrying out.
When Justice Amy Coney Barrett bluntly asked Feigin what “the point” of the government’s argument was, Feigin said he was asking for the court to uphold the jurors’ original decision.
Arguments were presented two days after this year’s Boston Marathon, which had been delayed due to the pandemic.
A unanimous jury originally sentenced Tsarnaev to death in May 2015 ― a punishment the Justice Department had sought under then-President Barack Obama ― before an appeals court reduced the sentence last year to life without parole. Although the state of Massachusetts outlawed the death penalty decades ago, federal charges can still carry a fatal sentence.
The bombing on April 15, 2013, is considered one of the worst acts of terrorism in the U.S., which the bombers allegedly carried out to punish Americans for U.S. wars in Muslim nations. Three people at the Boston Marathon were killed when a pair of homemade bombs detonated near the finish line. More than 260 others were wounded, many of whom lost limbs or carry other life-altering scars.
Tsarnaev, then 19, had helped plan the attack with his older brother, Tamerlan, 26, who died while the two were trying to escape from police.
The brothers took a fourth life ― that of an MIT police officer ― during the botched getaway.
Attorneys for Tsarnaev argued in court that although he was a part of the plot, his older brother was its true architect, convincing his impressionable younger sibling to help with a hateful attack he otherwise would not have pursued. They failed to convince a jury of seven women and five men.
However, the 1st U.S. Circuit Court of Appeals lessened Tsarnaev’s punishment to life behind bars in July 2020. The appeals court decided that the judge who oversaw the 2015 trial did not adequately screen potential jurors about what they may have already read or heard about the case, which had sparked global media attention.
The appeals court also decided that the district court should not have excluded evidence that Tamerlan had been implicated in a grisly 2011 triple homicide from the sentencing phase of the trial, ruling that such evidence was “highly probative of Tamerlan’s ability to influence Dzhokhar.”
“[E]vidence of this sort could reasonably have persuaded at least one juror that Dzhokhar did what he did because he feared what his brother might do to him if he refused,” the appellate court said.
A few Supreme Court justices, particularly Justice Elena Kagan, also appeared to doubt the government’s argument that the murder evidence would not have made a difference to jurors. Some of the court’s conservatives, including Justice Brett Kavanaugh, seemed to suggest that the evidence was properly ignored at the trial.
Under the Trump administration, the Justice Department swiftly sought to appeal the appeals court’s ruling, with then-Attorney General Bill Barr saying his department would do “whatever’s necessary” to secure a death sentence for Tsarnaev.
In June, Biden’s Justice Department moved forward, filing a 48-page brief in June arguing that Tsarnaev’s sentence had been wrongly overturned.